After action is raised against an executor, if he make payment to another creditor, even upon decree obtained against him, he will not be exonered, because he ought to have raised a multiplepoinding.
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In an action betwixt Jaffrey contra Gray, where the wife being convened, as intromissatrix with her husband's goods, to pay a debt owing by her husband to the pursuer, pendente liti, she being confirmed executrix, and having confirmed a testament; and thereafter another of her husband's creditors having recovered sentence against her, for payment of debt owing by the husband to that creditor, which debt exhausted all the gear contained in the said testament, and which sentence she had satisfied, and reported the said creditor's acquittance thereon, whereupon she having proponed an exception against the pursuit foresaid, now pursued, alleging that she ought to be assoilzied, in respect that she was executrix confirmed, and that she had paid a debt conform to the sentence foresaid, which exhausted all the free goods, and therefore she could not be convened as intromissatrix, she being confirmed executrix; and if she had any further intromission with any more of the goods and gear of the defunct than she had confirmed in testament, the pursuer might take a dative thereof, but therefore she could not be repute nor convened as intromissatrix. This allegeance was repelled, and the action sustained against her as intromissatrix, notwithstanding of the testament wherein she was confirmed executrix, and notwithstanding of the decreet obtained by the other creditor, and payment alleged made of the debt exhausting the testament; for the Lords found, That she could not make payment to another creditor, in prejudice of the pursuer, who had a pursuit depending before the said payment, and before that sentence; but she ought to have suspended upon double poinding, where the creditor's right would have been discussed according to the force of the same, and their diligence done by them, and thereby she would have been in security to pay to the creditor who should be found to have best right; and so she could not at her own election prefer one creditor to another.
Act. Craig.Alt. Stuart.Clerk, Gibson.
Fol. Dic. v. 1. p. 275. Durie, p. 241.
